Appellant was convicted of theft of an automobile, his punishment being assessed at two years confinement in the penitentiary.
There are no bills of exception in the record. In the motion for a new trial there are some criticisms of the charge. Some of these would have been sufficient to have required a reversal, doubtless, if called to the attention of the court before the charge was read to the jury, but this was not done and nothing said about it until the motion for new trial was filed. These are not of such fundamental character as is recognized under the statute requiring a reversal in the absence of exceptions taken before the charge was read to the jury. To illustrate, appellant was on the stand, and testified to his having been arrested under charge of theft of automobiles at other times and places than that charged in the indictment. There was no limitation of this testimony, but there was no exception to the charge on this matter. In the motion for new trial the charge is also criticised because it did not inform the jury that if appellant bought the machine, which was his account of possession of it, or if they had a reasonable doubt of it they would acquit. The court gave a charge, which has been approved by this court, in this connection submitting his reasonable account and explanation of his possession. Wheeler v. State, 34 Tex.Crim. Rep.; Branch's Ann. Penal Code, pp. 1334-1335. It was not really necessary to have given it in the other form, that is, charging them that if they believed he bought it, or had a reasonable doubt of it, they would acquit. The charge given sufficiently presented that matter. We think the evidence fully justified the verdict, and the judgment will be affirmed.
Affirmed. *Page 23
ON REHEARING. April 4, 1917.